Behavior Modification: Trial Lawyer's Edition

Posted on September 20, 2011 by Kendall Gray

Just about the time you think there is nothing new under the sun or nothing interesting to blog about, the legal profession continues to astound and amaze.

More specifically, trial lawyers will never let you down.

On Monday I was trolling my usual blog buffet and I saw this item on the ABA Blog about a lawyer that was defending himself, pro se, in his own criminal trial. 

You know the old saying, a lawyer who represents himself has a fool for a client. But this guy took it to a whole new level. He was essentially appearing in court with the human equivalent of a canine shock collar:

Four U.S. marshals will be in the courtroom as attorney Paul Bergrin goes on trial in federal court in Newark, N.J., next month in a racketeering case in which he is accused of operating his law firm as a criminal enterprise and conspiring with another New Jersey lawyer to murder government witnesses.

But that's not not enough security, court officials apparently have decided. Bergrin, who is defending himself pro se, will also wear a hidden ankle bracelet. If he moves too far from his assigned area of the courtroom and violates rules against approaching the bench or the jury, he could get a jolting electric shock from the marshals, via the bracelet, . . . .

A jolting, electric shock for trial counsel who neglects to seek permission before approaching the bench?

Now this could come in handy. Really, really handy . . . .

Of course, my first thought was that the Supreme Court of Texas might find such a device useful for all of those trial lawyers who handle their own appeals when they are prone to wander from the podium in order to re-deliver their closing argument:

  • But do you give the button to Chief Justice Jefferson? He might be too restrained, nice guy that he is.
  • One button to each member of court? That could be dangerous, especially if all nine are fighting to get their questions answered. That gives new meaning to the words "hot bench."
  • Maybe just give "the button" to Justice Hecht as the senior justice empowered to act on behalf of the court?

I'm probably just a bad and vindictive person, but I began to daydream about all the other habits of trial lawyers that such a device might plausibly correct. The list began to expand rapidly with everything from pet peeves that make my head explode to matters of real substance.

But before I publish my own list, I want to hear from you:

  • What are the things that other lawyers do that drive you crazy or make it harder to successfully do your job in representing the client?
  • What behaviors would you change if you could?
  • And in particular, what do lawyers do, often without thinking, for which you might give them a zap?
  • And what about you judges out there? Be anonymous if you need to, but what lawyer conduct do wish was Taze-worthy?

Use the comments. Weigh in. Speak out.

Or else.

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SCOTX: Statutes-O-Rama

Posted on April 29, 2011 by Kendall Gray

My recent homily in the Texas Lawyer mentioned how and why the Texas Supreme Court tends to grant statutory cases. This week's new opinions surely reflect that statutory bias. They are wall-to-wall statutory cases.

  • Travis Central Appraisal District v. Norman involves whether the Legislature's amendment to the Labor Code undid the Supreme Court's prior construction of the act in City of LaPorte v. Barfield. Answer: yes. The Court had previously held that the Labor Code waived immunity of political subdivisions as against retaliatory discharge/workers comp claims.  After the amendment, the Appraisal District now had immunity. Justice Medina wrote the opinion.
  •  Loftin v. Lee involved the application of the Texas Equine Activity Limitation of Liability Act (yes, there is one), which limits liability for the inherent risks of equine activity--e.g., horse back riding. Justice Hecht, writing for the Court, broadly applied the act to risks that, in their general character, are associated with activities involving equine animals, and also held that the failure to fully assess a rider's skill is no basis for liability if that failure did not cause the injury.
  • Roccaforte v. Jefferson County involved the question of whether personal service of notice of a claim on the county judge and county or district attorney was good enough, even though Section 89.0041 of the Local Government Code required registered or certified mail. Chief Justice Jefferson, writing for the majority, said it was. Justice Willett would have held that it was not, but concurred in the result, finding waiver because the County had engaged in litigation for two years and waited for limitations to expire before complaining.
  • On denial of rehearing in Turtle Health Care v. Linan, the Judge Per Curiam construed the Texas Medical Liability Act to the effect that claims complaining about the failure of a ventilator without properly charged batteries could not be brought outside the Act and its requirements for expert reports.

But just to keep Mr. Smarty Pants Blogger in his place, the Court granted a non-statutory petition for review, Texas Electric Utility Construction v. Infrasource Underground Construction Services, positing the question of whether attorneys fees can be recovered as damages for conversion when the unauthorized use of the converted property results in an injury and a lawsuit that the owner winds up defending.

Next week, we'll have another very special guest expert on the blog, this time on the issue of how to write for screen readers.

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Del Lago Partners v. Smith: Imprudently Correct

Posted on April 13, 2010 by Kendall Gray

Sometimes I sits and thinks.

And sometimes I just sits. 

Since the Supreme Court of Texas released Del Lago Partners v. Smith, I've been sitting and thinking and thinking.  And when I do it, I start to sound like a toddler.  All I can ask is "why?"

Not that the opinion is wrong, mind you. I take it for granted that it is correctly decided.  As Chief Justice Phillips used to say, "We are not final because we are infallible; we are infallible because we are final."

I just wonder why the Supreme Court of Texas is getting involved in a bar fight with drunken fraternity boys if it is not going to lay down a rule of law that can be applied to future cases.  This is sort of the opposite of the "Chuck Norris Theory" of Supreme Court Jurisdiction. 

After the jump, some rambling prose on why cases like Del Lago Partners aren't the highest and best use of judicial resources for a court with discretionary jurisdiction.

The Supreme Court was probably right to grant the petition for review in Del Lago.  Del Lago involves one of those issues in modern tort law that call out for treatment by a court of last resort.  What do you do when you have a victim with serious injuries but the most blameworthy party has no resources to satisfy a judgment? 

You see the same question in products cases (especially crash worthiness cases), Dram Shop cases, and premises cases involving criminal conduct by third parties.  There's a high likelihood that the drunk who crashes into you or who picks a fight in a bar is not wealthy enough to defray the costs of his moral fault.  No surprise there.  And their conduct is the type the law would want to discourage with an award of damages. But how much should the law shift the blame from the bad actor who is not loaded to the less culpable party who is?

So, Del Lago Partners involves a topic appropriate for Supreme Court treatment.  It is "important to the jurisprudence of the state."  And obviously, the cases that draw the best lines in the sand on such questions are those where the lower court comes out one way and the Supreme Court says, "No, the law goes only this far, not that far."

Here, however, the Supreme Court affirmed the lower court judgment, and it did so while trying not to create a new avenue of broad liability any time a "man walks into a bar."  Just look at the language Justice Willett uses, first to create an extraordinary factual setting and then to signal a limited holding:

This appeal concerns a bar owner’s liability for injuries caused when one patron assaulted another during a closing-time melee involving twenty to forty “very intoxicated” customers. The brawl erupted after ninety minutes of recurrent threats, cursing, and shoving by two rival groups of patrons. The jury heard nine days of conflicting evidence from twenty-one witnesses and found the owner fifty-one percent liable. The court of appeals affirmed the roughly $1.48 million award: “A
reasonable person who knew or should have known of the one-and-a-half hours of ongoing ‘heated’ verbal altercations and shoving matches between intoxicated bar patrons would reasonably foresee the potential for assaultive conduct to occur and take action to make the condition of the premises reasonably safe.”1 We agree with the court of appeals and affirm its judgment.
* * * 

We do not announce a general rule today. We hold only, on these facts, that during the ninety minutes of recurrent hostilities at the bar, a duty arose on Del Lago’s part to use reasonable care to protect the invitees from imminent assaultive conduct. The duty arose because the likelihood and magnitude of the risk to patrons reached the level of an unreasonable risk of harm, the risk was apparent to the property owner, and the risk arose in circumstances where the property owner had readily available opportunities to reduce it.

Doubtless, Justice Willett needed to write narrowly to keep his majority.  There was no consensus for a rule to reverse the judgment on the facts in this case nor even to state a rule for future cases.  Even on this narrow stance, Justice Willett's majority opinion drew three dissents from Justice Hecht, Justice Wainwright and Justice Johnson.

But, if there is no consensus to either state the rule of liability or the rule of non-liability, that raises an important question: Why write at all?   If you are a court of discretionary jurisdiction with limited resources, why expend those resources writing any opinion that merely affirms the lower court and trims around the edges while restricting itself to the facts? 

Courts of discretionary jurisdiction, which only grant review in a minority of cases, like the Supreme Court of the United States, "can no longer control lower courts by means of narrow, case-by-case determinations."  Richard A. Posner, How Judges Think, Ch. 10, p. 269 (2008). Every exercise of the Court's discretionary jurisdiction uses finite resources that are taken away from other matters where they might be better spent--squeezing out other cases that ought to be granted, making some cases into PC's when they ought to receive argument, or just slowing down a difficult docket.  Del Lago Partners, for example, consumed 2 years and four months of time between argument and issuance--even more, 3 years and 3 months between the filing of the petition for review and the opinion--all without a definitive rule one way or the other.

And then there are the costs in future cases.  No matter how the Court limits its holding, there is now a Supreme Court opinion on bar fights.  There will be more lawsuits concerning bar fights.  The Plaintiffs will argue that their facts are just as bad as Del Lago, and the Defendants will argue that they are not.  Unresolved is where the line actually lies. 

(Better, perhaps, to avoid bars and fraternity reunions altogether?)

It's no crime to grant a Supreme Court issue and then discover that, for whatever reason, there are procedural barriers or a lack of consensus to resolving the issue in a way that advances the jurisprudence of the state.  If this is so, better to avoid the expenditure of resources on the non-opinion-opinion.  Better to dismiss the petition as improvidently granted or deny the petition with a PC order flagging anything unseemly that was said by the lower court.

Del Lago is a fine opinion.  Well reasoned.  Narrowly drawn.  Persuasive.  This type of court just ought not have spent three years writing it. 
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In re USAA: Chuck Norris And The SCOTX Mandamus Standard

Posted on March 29, 2010 by Kendall Gray

The year 1999.  You're an appellate lawyer in a silk stocking firm in Houston, Texas.  You hear someone running toward your office door.  The door bursts open to reveal a trial lawyer, pupils dilated and sweat beading on his forehead. 

His client, Mega Co., just had a hearing on its 5000 page motion for summary judgment (that the trial lawyer insisted on drafting himself) and lost.  A fact question.  Who knew?

Now they are set for trial in a month but he vowed to Mega Co.'s CEO that they were going to stop the trial and appeal "all the way to the Supreme Court."

That's why he came to see you.  "I want you to handle the appeal."  He feels like he's offering you a plum piece of work that will keep you fully and lucratively employed for some time to come.

You invite him to sit down, perhaps offer him a beverage, before informing him that you will not be handling the appeal because there is nothing to appeal.

There is no appeal from an interlocutory order denying the garden variety summary judgment.  Everybody knows that.

"But this is truly extraordinary," he says.  "What about one of those mandamus things?"

After ascertaining that the only thing extraordinary about this proceeding is that this trial lawyer prefers not to lose, you answer, "No.  A denial of summary judgment is not reviewable by mandamus."  Everyone knows that, you add to yourself. 

Flash forward a decade, and the answer is not so clear.  But it is not nearly as murky as some folks complain.  You just have to understand the Chuck Norris exception to restrictions on mandamus review.

After the jump, my own take on why the Supreme Court of Texas is like Chuck Norris when determining whether mandamus should issue because appellate remedies are inadequate. 

Last Friday, the Supreme Court of Texas released In re United Services Automobile Association ("USAA") (pdf), which involves the granting of a petition for writ of mandamus to overturn the denial of a motion for summary judgment.  For some, this must be the final sign of the coming apocalypse. 

These are the signs, according to the prophets doom:

And now, the soothsayers say, the Supreme Court will hand out mandamus relief willy nilly, like dealers at a music festival.  We're reviewing the denial of summary judgment, the prophets moan.  Mass hysteria.  Dogs and cats living together.  Locusts.  Frogs.  Angels of death.

But I don't think the end is near.  At least not because of Walker v. Packer. There is a standard here if you look carefully enough.  It is the Chuck Norris standard. It is the right of the court system to defend itself.

You know the plot of the typical Chuck Norris movie: the beginning will have some minor skirmishes or the "bad fight" where Chuck gets beat up and has to muddle through.  But eventually, the bad guy will pick on Chuck's girl or commit some calumny that is sufficiently odious and Chuck goes medieval and starts to round-house kick everything in sight.

Well, that's the new, extra-Walker-v.-Packer mandamus standard.  Not every horrible ruling is subject to mandamus review.  But the cost-benefit balance will allow the Court System to resort to self-defense.

The Court System and Chief Justice Jefferson are Chuck Norris.  And Chuck does not want to round-house kick your trial court case.  But the Court System (Chuck) has a right to defend itself from being abused.  If you try to game the system, especially where there is a legislative policy stated to the contrary, Chuck (the Court System) will issue a mandamus (round-house kick) to your face.

Just look at the three cases Chief Justice Jefferson relies on in USAA:

  • CSR Ltd. involved untold hordes of plaintiffs who tried to game the system by marooning a foreign defendant in Texas where it had no jurisdictional contacts and (the plaintiffs thought) no way of escape other than settlement--a civil justice hostage taking.
  • Prudential involved a party who agreed not to put its contractual counterpart or the Court System through a jury trial but tried to do so anyway, thinking it might impose the costs and hide behind the "harmless error rule" in the event that it's gambit resulted in a nice verdict.
  • McAllen Medical Center involved upholding the legislative value judgment that medical malpractice plaintiffs not encumber the civil justice system (or the medical profession) with claims lacking medical expert support.
  • And then USAA involved a second useless trial, made necessary only because of the plaintiff's strategic decision to pursue the first trial in a court without jurisdiction. 

So, while the cost-benefit analysis may be mushier than the categories in Walker v. Packer, these cases have something in common.  The courts will strike that balance in favor of mandamus relief when necessary to protect the system from abuse. 

Said differently, Chief Justice Jefferson may seem quiet, reserved and dignified on the surface, but like Chuck Norris, he has a wicked round-house kick when provoked.
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